Constitutional Court of the Republic of Indonesia Rejects Formal Test of Job Creation Law, KSBSI Confirms to Continue Material Test

ACV-CSCIASIA.ORG, JAKARTA – Five cases of requests for formal review of Law Number 6 of 2023 concerning the Determination of Government Regulation in Lieu of Law (Perppu) Number 2 of 2022 concerning Job Creation into Law (UU Job Creation) submitted by Indonesian trade unions were ultimately rejected. entirely by the Panel of Constitutional Judges after a long process in court.

The five cases are Number 54/PUU-XXI/2023, Case Number 40/PUU-XXI/2023, Case Number 46/PUU-XXI/2023, Case Number 50/PUU-XXI/2023, and Case Number 41/PUU- XXI/2023 proposed by the Confederation of All Indonesian Trade Unions (KSBSI). The verdict was read on Monday (02/10/2023), in the Plenary Courtroom of the Constitutional Court, Jakarta.

Responding to this, Harris Manalu, KSBSI power coordinator in Case Number 41/PUU-XXI/2023 said that the legal considerations in the decision read by the Constitutional Court Judge must be respected.

“Yes, I am very disappointed, because to be honest, for myself, I don’t quite understand, there are too many judge’s considerations and opinions that are not extracted from the facts at the trial. However, whatever it is, if it has become a judge’s decision, especially if it is a decision of the Constitutional Court, yes must be respected.” said Harris Manalu after undergoing trial.

Furthermore, Harris Manalu explained that since this decision, trade unions in Indonesia have been able to submit material reviews of several articles in Law Number 6 of 2023, especially in the Employment Cluster, more specifically in Law 13/ 2003 which was amended in Law Number 6/2023.

“It can be submitted for material testing, and I am optimistic that the material can be corrected.” he explained.

Meanwhile, the President of KSBSI, Elly Rosita Silaban, said that the workers were disappointed with the decision read by the Constitutional Court Judge at the hearing to read this decision. However, he emphasized that his organization would continue its struggle through a request for a material test.

“There is a bit of disappointment, because from the first reading of the article there were indications that not a single lawsuit from the workers/labor unions would be granted. All of them were considered to be without legal grounds by the Panel of Judges, even the formation of a law or bill from the Perppu was unnecessary involving community involvement.” Elly Rosita growled during the verdict hearing.

Elly Rosita emphasized that this was very disappointing for Indonesian workers, because not a single labor union application was won. However, his party will immediately submit a request for material review of Law 6/2023.

“Our decision is that we will move forward with the judicial review.” she stressed.

Reporting from the official MKRI website, in the legal consideration of Case Number 54/PUU-XXI/2023 which was read by Constitutional Justice M. Guntur Hamzah, it was stated that the Petitioners argued that Perppu 2/2022 as the precursor to the birth of the Job Creation Law had been enacted by the President with violates Constitutional Court Decision Number 91/PUU-XVIII/2020 regarding meaningful participation. Regarding this argument, the Court is of the opinion that, based on the legal framework for the formation of laws originating from a Perppu, a Perppu that has been enacted by the President must obtain approval from the DPR so that it remains valid as law.

“The President’s submission of the Perppu to the DPR is in the form of a bill. “However, even though it is in the form of a bill (which is the same as an ordinary law), the bill regarding the enactment of a Perppu into law has a different character from an ordinary bill, such as the phase mechanism and time period as previously considered,” said Guntur reading out his considerations. law for cases filed by the 15 labor unions or federations.

Guntur continued that the special character of the bill regarding the enactment of a Perppu into law also means that not all principles for the formation of statutory regulations as stipulated in the provisions of Article 5 of Law 12/2011 are absolutely binding. For example, he continued, the Elucidation to Article 5 letter g of Law 12/2011 has determined the meaning of the principle of openness, namely in the formation of legislative regulations starting from planning, drafting, discussion, ratification or stipulation, and promulgation which is transparent and open.

“So, all levels of society have the widest possible opportunity to provide input in the formation of legislative regulations. “In fact, as explained previously, the mechanism for forming laws originating from the Perppu does not go through all the stages as intended in the Elucidation to Article 5 letter g of Law 12/2011 a quo,” added Guntur.

Moreover, Guntur explained that the pressing aspect of urgency which is a condition for the issuance of a Perppu causes the process of forming laws originating from a Perppu to have limited time. So, according to reasonable reasoning, there needs to be a distinction between laws originating from Perppu and ordinary laws, including in terms of implementing the principle of meaningful participation.

“Therefore, the process of approving the bill to enact a Perppu into law in the DPR is not relevant to involving broad meaningful participation of the community because of the urgent situation which forces the DPR’s approval to be carried out within the framework of carrying out its supervisory function which is actually a representation of the will of people. “Nevertheless, in the process of discussing the bill to make the Perppu into law, it does not involve meaningful public participation, but the DPR is obliged to provide information to the public so that the public can access and provide input, such as through the information system application on the DPR’s official website,” explained Guntur.


Guntur explained that according to the Court, more meaningful community participation as considered by the Court in Constitutional Court Decision Number 91/PUU-XVIII/2020 and then accommodated in the norms of Article 96 of Law 13/2022 is intended to create genuine public participation and involvement. indeed at every stage of the formation of legislative regulations.

In such a context, legislators have an obligation to listen, consider and provide explanations to all parties, especially parties affected and interested in the policy choices taken or determined not to be implemented in the case of policy choices in the form of Perppu. Therefore, in the process of forming a (ordinary) law, meaningful participation must be carried out at all stages, especially at the stages of submission, discussion and approval.

“However, unlike the process of approving bills originating from Perppu, the implementation of meaningful participation is no longer relevant. “Thus, according to the Court, the Petitioners’ argument that Perppu 2/2022 is the forerunner to the birth of the Job Creation Law has been stipulated by the President in violation of Decision Number 91/PUU-XVIII/2020 regarding meaningful participation is groundless according to law,” said Guntur.

Not an Ordinary Procedure

Meanwhile, regarding the Petitioner’s argument in Case Number 50/PUU-XXI/2023 which states that the stipulation of the Job Creation Law is not in accordance with Article 42A of Law 13/2022 because the Law is not regulated in the planning document even though it uses the omnibus method, the Court is considering the background to the formation of the Job Creation Law . According to the Court, the Job Creation Law is basically not a law that was formed using ordinary processes or procedures. This is because the a quo law is a legal product that originates from the bill to enact a Perppu into law. So the background to the formation of the Job Creation Law cannot be separated from the formation of Perppu 2/2022 which was ratified by this law. From the previous consideration of Case Number 54/PUU-XXI/2023, it has been concluded that the stipulation of Perppu 2/2022, which later became the Job Creation Law, according to the DPR, has fulfilled the requirements of compelling urgency.

“In other words, the DPR has given an assessment regarding the fulfillment of these requirements so that the Petitioner’s contention regarding the formation of the a quo law does not meet the criteria of compelling urgency has been declared legally groundless,” said Constitutional Justice Arief Hidayat reading out the legal considerations for the petition submitted by the Labor Party. the.

Based on all the legal considerations above, the Court is of the opinion that it has been proven that the formal process of establishing the Job Creation Law does not conflict with the 1945 Constitution. Therefore, the Job Creation Law still has binding legal force. Thus, the arguments of the Petitioners’ petition are completely groundless according to the law.

Different Opinions

Even so, four of the nine constitutional judges expressed a dissenting opinion. Three judges stated that the Petitioner’s petition should be granted. The three judges are Constitutional Justice Wahiduddin Adams, Constitutional Justice Saldi Isra and Constitutional Justice Enny Nurbaningsih. Meanwhile, Constitutional Justice Suhartoyo said that the Court should declare the Petitioners’ petition premature and that the Court, before handing down its final decision, through a provisional decision ordered the legislators to comply with the ruling of the Constitutional Court Number 91/PUU-XVIII/2020.

In his different opinion, Constitutional Justice Wahiduddin Adams stated that the Job Creation Perppu received approval from the DPR after the expiration of the time limit determined based on Article 22 paragraph (2) of the 1945 NRI Constitution (“the following trial”), so the a quo Law had no basis. constitutional to be formed because what constitutionally should be done and implemented is the provisions of Article 22 paragraph (3) of the 1945 Constitution of the Republic of Indonesia. This is also important to comply with so that in the future there will be no ‘political games (acrobatics)’ that can be carried out by the President and DPR collaboratively or which can occur between the President and the DPR (and vice versa) in the context of follow-up to the enactment of a Perppu.

Meanwhile, Deputy Chief Justice of the Constitutional Court Saldi Isra and Constitutional Justice Enny Nurbaningsih, stated that as far as was revealed at the trial, regarding this matter, the legislators had actually planned to form a Job Creation Law so that it would be included in the 2020-2024 Prolegnas List which was placed in order number 209 based on DPR Decree on December 7 2021. Proposing this law is a government initiative, even the President has prepared the Job Creation Bill and carried out public consultation activities in an effort to carry out meaningful participation. However, in its development, the President actually took steps to establish a Perppu. The actions of the legislators are clearly not a follow-up to the Constitutional Court Decision Number 91/PUU-XVIII/2020. If the issuance of a Perppu is accepted and assessed as a follow-up to the a quo decision, it is very feared that in the future this practice will set a bad precedent with the widespread issuance of Perppu which was born from the follow-up to the Constitutional Court Decision simply to speed up the formation and improvement of a law without involving DPR.

Both of them also explained that in fact the legislators did not follow up on Constitutional Court Decision Number 91/PUU-XVIII/2020 to form laws to improve the process or procedures for forming laws, including opening up the possibility of improving the substance of Law 11/2020. With regard to this fact, both of them can still consider the formation of a Perppu as a way out if the formation of a law as intended in the Constitutional Court Decision Number 91/PUUXVIII/2020 has been pursued in such a way and the time provided (a maximum of two years) has approached the specified limit. . However, because the efforts to formulate a law as intended in the a quo Decision were not carried out in such a way and the President actually formed a different legal product, in casu Perppu, even though there was still enough time available to form a law, the Court should have granted the Petitioners’ petition.

Finally, Constitutional Justice Suhartoyo was of the opinion that the Constitutional Court almost always adjudicated formal review requests by stating that the Petitioner’s petition could not be accepted because the petition in question lost its object because the DPR had given approval to the Perppu. Therefore, through his legal considerations, he believes that for the sake of legal certainty and justice, formal review of the Perppu can be encouraged to assess its constitutionality after the Perppu has received approval from the DPR and has become law. Thus, formal review of the Perppu can be carried out to assess its constitutionality together with formal review of the law. According to the legal perspective, this is also because providing opportunities for formal review of Perppu as submitted to the Court so far has only given hope to seekers of justice (justiciabelen), without being able to be accommodated by the Court by formally assessing the issue of constitutionality of the Perppu in question.

Material Test Continued

Furthermore, regarding the material review submitted in Case Number 40/PUU-XXI/2023, the Court handed down a provisional decision so that the request for material review of the Job Creation Law continues. In the legal considerations read out by Constitutional Justice Daniel Yusmic Pancastaki Foekh, the Court considered that regarding the a quo petition, the Petitioners combined their request for formal and material review.

“Meanwhile, the Court has issued a decree which essentially separates the formal review examination from the material test, as well as postponing the material review examination as intended in Decree Number 40/PUU-XXI/2023, Number 39/PUU-XXI/2023, and Number 49/ PUU-XXI/2023 concerning Separation of Examination of Applications for Formal and Material Testing, and Postponement of Examination of Applications for Material Testing. “Because the formal review of the a quo petition is unreasonable according to law, the material review examination will immediately continue,” added Daniel, reading the petition submitted by 121 Petitioners consisting of 10 trade unions and 111 workers.

During the trial, the Court also rejected Case Number 41/PUU-XXI/2023 filed by the All-Indonesian Trade Union Confederation, as well as Case Number 46/PUU-XXI/2023 filed by 14 unions and workers’ federations. (*)